made from time to time as the purposes of this act may require.'' 18 These provisions were carried forward, without substantial change, into the Copyright Act of 1909,19 which is the present law. This act further specially provides that the provisions as to devices for the mechanical reproduction of music shall not include the works of a foreign author or composer unless the foreign state or nation of which he is a citizen grants like rights to citizens of the United States.20 Under these statutes, while the proclamation of the president declaring the existence of the reciprocal conditions

specified does not create the right of nonresident alien authors to enjoy the privileges of the copyright laws,21 but is only the evidence of the conditions under which those rights and privileges may be exercised,22 yet it is the conclusive and only evidence admissible on that point,23 and such proclamation is a necessary condition precedent to the exercise of any rights under the copyright law by a nonresident alien, including the right of controlling the parts of instruments serving to reproduce mechanically a musical work.25 A foreign author or proprietor, not domiciled within the United States mine the conditions upon which they might depend than the President?" Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 247, 248, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.

327, 128 AmSR 135, 43 LRANS 639 | particular right was concerned, was
[aff 223 U. S. 424, 32 SCt 263, 56 L. precisely the same as if the act did
ed. 492].
not exist." 29 Op. Atty.-Gen. (Fowl-
er) 64, 72.

"The provision that books of foreign authors 'heretofore' published of which new editions shall thereafter appear are entitled to copyright was enacted by Act March 3, 1891, C. 565, 26 Stat. 1110 (U. S. Comp. St. 1901, p. 3417), section 13 of which extended the benefit of our copyright laws upon certain conditions to foreigners. Prior to that act no foreign author or assignee of a foreign author could avail of our copyright law. Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Fraser v. Yack, 116 Fed. 285, 53 CCA 563." West Pub. Co. v. Edward Thompson Co., supra.

18. Act March 3, 1891 (26 St. at L. 1106 c 565 § 13); 29 Op. Atty.Gen. (Wickersham) 209; Frohman v. Ferris, 238 Ill. 480, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]. [a] Reciprocity contemplated. The statute contemplates a reciprocity of rights. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.

19. Act March 4, 1909 (35 St. at L. 1075 c 320 § 8) (which reads as follows: "Sec. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: (a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or (b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require"); Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489. 20. Act March 4, 1909 (35 St. at L. 1075 c 320 § 1(e)).

21. 28 Op. Atty.-Gen. (Wickersham) 222.

[a] Rule applied.-"Germany hav-
ing complied with one or more of the
conditions set forth in section 8, sub-
section (b), on or before July 1, 1909,
at any time thereafter and independ-
ent of the President's proclamation,
a German citizen could acquire the
rights declared by the act of March
3, 1909, by a compliance with its
terms. It is true that, in the ab-
sence of the President's prociama-
tion, he could not obtain a registra-
tion of his claim to copyright; but
under this statute registration is not
a necessary prerequisite to the ex-
istence of the rights and privileges
of copyright, as they are vested by
a compliance with the conditions of
the statute by the author or com-
poser." 28 Op. Atty.-Gen. (Fowler)
64, 70.

22. 28 Op. Atty.-Gen.
sham) 222; 29 Op. Atty.-Gen. (Fowl-
er) 64.

23. Chappell v. Fields, 210 Fed.
864. 127 CCA 448; 28 Op. Atty.-Gen.
(Wickersham) 222.

24. Bong v. Alfred S. Campbell
Art Co., 214 U. S. 236, 29 SCt 628,
53 L. ed. 979, 16 AnnCas 1126 [aff
155 Fed. 116. 83 CCA 5761; 28 Op.
Atty.-Gen. (Wickersham) 222.
[a]

24

25. 29 Op. Atty.-Gen. (Fowler) 64. [a] Proclamation as to mechanical musical rights.-"Does the provision at the end of section 8, requiring the President to determine the 'reciprocal conditions aforesaid,' by procla mation, apply to the restriction upon aliens contained in section 1 (e)? This presents another of the many difficult questions of construction which have arisen in the enforcement of this act. It must be conceded that this provision is remote from section 1 (e), that it relates directly to the preceding provisions in section 8 and that it contains nothing which necessarily requires its extension to the condition expressed in section 1 (e). However, here, as in every question of statutory construc tion, it is necessary to consider all parts of the act relating to the sub(Wicker-ject under consideration, and to determine therefrom as nearly as possible the legislative intent. That there is a close relationship in the subject matter of section 1 (e) and of the proviso to section 8, is apparent. The latter relates to the conditions upon which an alien may acquire the general privileges under the act, while the former specifies a particular condition upon which an Rule applied.-"It is next con- alien may acquire the right of contended that Hernandez, as a subject trolling the parts of instruments of Peru, was entitled to a statutory serving to reproduce mechanically a copyright in his own right, because, musical work. This condition is in as it is further contended, Peru be- a way dependent upon the conditions longs to the Montevideo International set forth in section 8, inasmuch as it Union. This contention is based on may be complied with, and yet the the words of § 13, [26 Stat. at L. right to control the parts of the in1110], which gives the right of copy-struments mentioned could not be right to a citizen or subject of a acquired unless some one of the conforeign state or nation when such ditions prescribed in the latter secstate or nation is a party to an in- tion is also met; that is, the conternational agreement which pro- dition relating to this particular matvides for reciprocity in the granting ter is added to those set forth in of copyright, by the terms of which section 8. It is reciprocal in its naagreement the United States of ture, just as those in class (b) of America may, at its pleasure, become section 8 are reciprocal. Every reaa party to such agreement.' If this son which prompted the insertion of were all there were in the statute, the clause in section 8 relating to the contention of the plaintiff might the proclamation by the President, have some foundation. The statute, applies equally to the proviso in sechowever, provides that the existence tion 1 (e). Without the specification of such condition 'shall be deter- of some method by which it may be mined by the President of the United determined whether the laws of a States by proclamation, made from foreign country comply with this time to time, as the purposes' of the particular condition, the general pubfact may require.' It is insisted, lic could possess no adequate knowlhowever, that this provision is di- edge as to whether a copyright of a rectory and a right is conferred in- musical composition carried with it dependent of the action of the Presi- the protection of the right declared dent, his proclamation being only a therein, and the proof of such right convenient mode of proving the fact. in actions for infringement would We cannot concur in this view, nor often be uncertain and difficult to do the cases cited by plaintiff sus- obtain. There can be but little doubt tain it. that Congress intended that the requirement that the existence of the reciprocal conditions aforesaid' shall be determined by the President of the United States, should apply to the reciprocal requirements specified in section 1 (e), and that it was not there expressed because it was assumed that the language of the concluding clause of section 8 implied that all reciprocal conditions upon which the right of foreign authors or composers depend, should be determined and proclaimed by the

It is admitted that the decision of the State Department is adverse to the contention, and, it is asserted by the defendant and not denied by plaintiff, that the Librarian of Congress has always construed the statutes as denying to citizens of Peru copyright protection. We think, besides, the statute is clear and makes the President's proclamation a condition of the right. And there was reason for it. The statute contemplated a reciprocity of rights, and what officer is better able to deter

before issuance of the presidential proclamation may be maintained after such proclamation has been made,28 provided, however, the proclamation recites that the reciprocal conditions had been met at some date prior to the date of the proclamation; otherwise the proclamation speaks only from its date.29 The date when the reciprocal condition was actually met by the laws of any foreign state or nation is the one which should be inserted in the proclama

[a] Reason for rule."It will be observed that the determination of the specified conditions of the foreign laws and the proclamation of the President made with reference thereto does not create the right of foreign authors and proprietors to enjoy the rights and privileges of our copyright laws, but that such proclamation is only the evidence of the existence of the conditions under which those rights and privileges may be exercised. It is true that the absence of such proclamation is conclusive evidence that such rights mation not exist, while, on the other do hand, the proclamation is conclusive evidence that they do exist; but, nevertheless, the proclamation is not a condition precedent to the existence of the rights themselves. Therefore, there is no reason why such proclamation may not be retroactive in its effect; and, consequently, if a proclamation were made showing the determination of fact by the President that either of the conditions required in the statute have been complied with since a specified date, such proclamation would be conclusive evidence of that fact, and the citizens or subjects of such country would be entitled to avail themselves of our copyright laws from the date mentioned in the proclamation. was unquestionably recognized by Congress that it would require some time for the President to make the

Gen. (Fowler) 64, 70.

29. 29 Op. Atty.-Gen. (Fowler) 64. German citizen who has strictly com[a] Illustrations of rule.-(1) A plied with the provisions of the Copyright Act at any time between July 1, 1909, the date on which the law became effective, and April 9, 1910. the date of the proclamation citizens of Germany were entitled to of the president declaring that the the general privileges of that act, is not only vested with a copyright in his work or composition, but he may also maintain an action for any infringement which occurred between said dates. 29 On. Atty.-Gen. (Fowler) 64.

infringement of the particular right (2) "With reference to an specified in the proviso of section 1 (e) between September 9, 1910, and December 8, 1910, the same principle must apply; but it will be observed that the proclamation of the President does not recite that this condition had been met prior to the date of the proclamation; and therefore the proclamation would not afford evidence sufficient for the maintenance of an action for infringement between said dates. It is apparent, therefore, that when a proclamation is issued by the President, the precise date upon which

tion, 30
Numerous proclamations establishing re-
ciprocal copyright relations between the United
States and various foreign nations have been made
from time to time.31 Such proclamations continue
in force until withdrawn by new proclamations, not-
withstanding changes in the law of the foreign
countries to which such proclamations relate.32 The
act of 1891 frequently has been termed the "Inter-
national Copyright Act," but this is a misnomer;
the act in no true sense provided for an interna-
tional copyright. The copyright which, in con-
formity with its provisions, a citizen may obtain
in a foreign country, or which a nonresident alien
may obtain in this country, is strictly national and
limited to the territorial limits of the sovereignty
which grants it. Separate and independent copy-
rights must be obtained in the several countries, in
accordance with their respective laws. Merely the
privilege of obtaining such copyrights is secured.
International copyright in any real sense means more
than this.33

[159] c. Residents of Hawaii, Porto Rico, and Philippine Islands. The application of the copyright laws to the outlying territorial possessions of the United States, particularly the Philippine Islands, may admit of some question, except so far as the law has been expressly extended to them.34 But aside from this, all such territorial possessions forthwith on acquisition by the United States ceased to be foreign states or nations, and as both the act of 1891 and the act of 1909 extend the privilege of copyright to all persons irrespective of nationality, except "a citizen or subject of a foreign state or nation" which does not grant reciprocal privileges to citizens of the United States,35 the inhabi

the foreign country brought itself within the conditions of the act should be stated." 29 Op. Atty.-Gen. (Fowler) 64, 71.

30. 29 Op. Atty.-Gen. (Wickersham) 209, 210; 29 Op. Atty.-Gen. (Fowler) 64.

"The date when the reciprocal condition was actually met by the laws of Cuba is the one which should be inserted in the proclamation. (See my letter to you of May 6, 1911, 29 Opinions 64.) From the information contained in the letters transmitted to me, it does not affirmatively appear that this reciprocal condition existed prior to May 29, 1911. This is the date, then, to appear in the proclamation, unless you have or can obtain information showing that such condition actually existed at an earlier day, in which event such earlier date is the one to be stated in the proclamation." 29 Op. Atty.Gen. (Wickersham) 209, 210.

tants of such territorial possessions are entitled to avail themselves of the privileges of the copyright laws of the United States, and to receive protection thereunder, at least within the states of the Union.36

38

37

[ 160] d. Assigns. Prior to the act of 1891 extending the privilege of copyright to aliens under conditions securing reciprocity, the assignee of a nonresident alien, although himself a citizen of the United States, could obtain no valid copyright by compliance with the requirements of the statutes for obtaining their protection, because his assignor had no right to assign." For a like reason, even since the act of 1891, a citizen of a foreign country with which copyright relations have not been established by proclamation of the president cannot convey to an assignee the right to obtain a copyright, and this is true, although such assignee is a citizen of the United States,10 or of a country with which international copyright relations have been established." But an assignee of a citizen of a country with which copyright relations have been established by proclamation12 is entitled to obtain a copyright."

39

[161] 2. Under English Statutes. In England the statute of 1911 makes a distinction between published and unpublished works with regard to the citizenship and residence of the author. In the case of published works, copyright subsists and belongs to the author, provided only the work was "first published within such parts of His Majesty's dominions" to which the act extends," and subject to this condition a nonresident alien author is entitled to a copyright under this statute. In the case of unpublished works, copyright subsists only if "the author was at the date of the making of the work a British subject or resident within such parts

44

38. See supra § 154.

39. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116, 83 CCA 576].

same basis as to her own citizens, | 20 Blatchf. 452.
and the courts have no right to re-
view it. Since that time Great Brit-
ain has made changes in her own
law which the defendants say result
in a denial to our citizens of sub-
stantially the same rights as her
own citizens enjoy, and insist that
the court should determine this
question and act accordingly. Con-
gress, in our opinion, has confided
the whole subject to the Executive
exclusively. The President is re-
quired, by proclamation, to determine
from time to time, as the purposes of
the act may require, the existence
of these reciprocal conditions. As
no proclamation has been made since
that of April 9, 1910, we are bound
to presume that in the opinion of
the Executive these conditions do
still exist." Chappell v. Fields, 210
Fed. 864, 866, 127 CCA 448.
33. See infra § 453.
34. See supra §§ 72-76.
35.

See supra § 158.

36. 25 Op. Atty.-Gen. (Moody) 179 [overr on this point 22 Op. Atty.-Gen. (Griggs) 268].

31. [a] Presidential copyright proclamations have been issued securing copyright privileges in the United States to the citizens or subjects of the following countries: 37. West Pub. Co. V. Edward Austria, Belgium, Chile, China, Costa Thompson Co., 176 Fed. 833, 100 CCA Rica, Cuba, Denmark, France, Ger- 303 [mod 169 Fed. 8331; Fraser v. many, Great Britain and her posses- Yack, 116 Fed. 285, 53 CCA 563; sions, Guatemala, Honduras, Hun-Yuengling v. Schile, 12 Fed. 97, 20 gary, Italy, Japan, Luxemburg, Mex- Blatchf. 452; Keene v. Wheatley, 14 ico, Netherlands (Holland) and pos- F. Cas. No. 7,644. sessions, Nicaragua, Norway, Portu- [a] Statute construed.-Congress, gal, Salvador, Spain, Sweden, Switz- in the revision of the Copyright Act erland, and Tunis. See infra § 454. of 1870, did not intend any reversal 32. Chappell v. Fields, 210 Fed. 864. 127 CCA 448.

or change of its inflexible policy, ever since the act of 1790, of protect[a] Rule applied to British Copy- ing only native or resident authors right Act of 1911.-"April 9, 1910, and artists, and that the word "proPresident Taft issued a proclamation prietor," in § 86 of the act of 1870, stating that citizens of Great Brit- and in § 4952 of the Revised Statutes. ain are entitled to the benefit of our must be construed in the limited copyright law, with an exception not and restricted sense in which it has material in this case. This procla- been used in every act from that of mation is conclusive evidence of the 1790 downward, namely, as the legal fact that Great Britain at that date representative of a right derived gave our citizens the benefit of her from a native resident author or arcopyright laws on substantially the tist. Yuengling v. Schile, 12 Fed. 97,

"It has been held that when a person is the author or proprietor of a painting, and has the right under our statute to secure a copyright on the same, he may separate the two, selling the right to take out a copyright to one person, while he himself retains the original painting, or sells it, without copyright privileges. to another person. We know of no authority which holds that when a person is the author or owner of a painting, but has no right under our statutes to secure a copyright here, he may nevertheless, while retaining the painting, convey to some one else what he does not own himself, viz., the right to take out copyright. In the absence of controlling authority we are unwilling so to hold, believing that such a construction would be judicial legislation defeating the very object which Congress, by the thirteenth section above cited, sought to obtain." Bong v. Alfred S. Campbell Art Co., 155 Fed. 116, 83 CCA 576 [aff 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126].

40. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126.

41. Bong v. Alfred S. Campbell Art Co., 155 Fed. 116, 83 CCA 576 [aff 214 U. S. 236, 29 SCt 628, 53 L. ed. 979. 16 AnnCas 1126].

42. For list of such countries see supra § 158 note 31.

43. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72. 52 L. ed. 208, 12 AnnCas 595: Werckmeister v. Pierce, etc., Mfg. Co.. 63 Fed. 445 [rev 72 Fed. 54, 18 CCA 4311; Werckmeister v. American Lith. Co., 142 Fed. 827.

44. 45.

St. 1 & 2 Geo. V c 46 § 1 (1).
See infra § 221.

47

46 Until

51

United States on the basis of the latter view.50 Under the view that a nonresident foreigner, although first publishing in England, was not entitled to copyright, a British subject to whom such work was assigned likewise could obtain no copyright, the rule being the same in this respect as under the American statute.52 Under the other view, a British assignee of a nonresident foreigner acquired copyright by first publication within the British dominions.53 Subjects, whether resident or nonresident at the time of publication, were entitled to copyright;54 and mere temporary residence, in the case of a foreigner, was sufficient to support the copyright. Under the international copyright acts, provision has been made for securing the

of His Majesty's dominions as aforesaid." this statute was enacted, it was still doubtful and unsettled whether or not an author must be a British subject, or a resident within the British dominions at the time of publication in order to be entitled to copyright under the general copyright statutes. The cases are confused and conflicting; some of them arose under the statute of Anne and some under that of Victoria, but there is no sound ground for distinction based on the wording of the statutes. The weight of authority supports the view that a nonresident foreigner could not acquire copyright under the general copyright law, although there is strong authority to the contrary,19 and copyright relations were established with the 46. St. 1 & 2 Geo. V c 46 § 1 (1). | resident here can have an English | Britain as one of the countries which See also infra § 222.

"In the case of a work first published in such dominions, therefore, no distinction is made in the right to copyright between a British and a foreign author, nor in the case of an unpublished work, if, when the work was made or during a substantial part of that period, the author was a British subject or domiciled in such part to which the Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), extends or is extended by Order in Council." Halsbury L. Eng. Suppl. (1917) p 366.

47. Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; MacGillivray Copyright p 42 (where, as late as 1902, the author said: "It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria").

48. Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681 [rev 6 Exch. 580, 155 Reprint 675] (holding that, if the foreign author is not within the country at the time of publication, he is not within the protection of the statute of Anne); Novello v. James, 4 De G. M. & G. 876, 54 EngCh 686, 43 Reprint 1111; Boosey v. Purday, 4 Exch. 145, 154 Reprint 1159; Guichard V. Mori, 9 L. J. Ch. O. S. 227; D'Almaine V. Boosey, 4 L. J. Exch. 21; Chappell V. Purday, 14 M. & W. 303, 153 Reprint 491; Geissendorfer v. Mendelssohn, 13 T. L. R. 91 (which, however, was decided before the Additional Act of Paris, 1896, came into operation). See Routledge v. Low, L. R. 3 H. L. 100, 113 (where Lords Cranworth and Chelmsford took this view, disagreeing with Lords Cairns and Westbury on this point, Lord Cranworth saying: "I have no hesitation in concurring with my noble and learned friend in thinking that the decree below was right. I find it difficult to concur with him in the opinion that the present statute extends its protection to all foreigners wherever they may be resident, without saying that the case of Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681 is not good lawa conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of Jefferys V. Boosey, supra. That case, as my noble friend has pointed out, was decided, not on the construction of the Act of the 5 & 6 Vict. c. 45, but on the old statute of Queen Anne; but I own I do not, as at present advised, see any difference between the two statutes so far as relates to the subject of the residence of foreign authors").

"Upon the whole, then, we think it doubtful whether a foreigner not [13 C. J.-34]

|

48

55

copyright at all; and we think he
certainly cannot, if he has first pub-
lished his work abroad before any
publication in England." Chappell v.
Purday, 14 M. & W. 303, 321, 153 Re-
print 491.

[a] The leading cases on this sub-
ject are Jefferys v. Boosey, 4 H. L.
Cas. 815, 10 Reprint 681 [rev 6 Exch.
580, 155 Reprint 675]; Routledge v.
Low, L. R. 3 H. L. 100.

49. Boosey v. Davidson, 13 Q. B. 257, 66 ECL 257, 116 Reprint 1261; Cocks v. Purday, 5 C. B. 860, 57 ECL 860, 136 Reprint 1118; Bach v. Longman, Cowp. 623, 98 Reprint 1274; Buxton v. James. 5 De G. & Sm. 80, 64 Reprint 1027; Ollendorff v. Black, 4 De G. & Sm. 209, 64 Reprint 801; Liebler v. Harkins, (N. S.) 1 EastLR 157; Boosey v. Jefferys, 6 Exch. 580, 155 Reprint 675 [rev 4 H. L. Cas. 815, 10 Reprint 681]; Guichard v. Mori, 9 L. J. Ch. O. S. 227; D'Almaine v. Boozey, 4 L. J. Exch. 21; Bentley v. Foster, 10 Sim. 329, 16 EngCh 329, 59 Reprint 641; Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 394, 8 OntWR 28, 7 OntWR 337.

"The reasoning in these judgments convinces me, after a careful perusal of the two Acts, that the present Copyright Act does extend protection to the production of foreign authors wheresoever resident, assuming that there is a first or contemporaneous publication within the Empire, and I therefore adopt the view that Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681 is not a binding authority on this point under the present Act." Life Pub. Co. v. Rose Pub. Co., supra (per Teetzel, J.).

"It appears to us, then, upon the authorities, as well as upon principle, that an alien amy, the author of a work of which he is also the first publisher in England, and which has not been made publici juris by a previous publication elsewhere, has a copyright in that work, whether it be composed in this country or abroad.' Cocks v. Purday, 5 C. B. 860, 884, 57 ECL 860, 136 Reprint 1118 (per Wilde, C. J.).

50. Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28, 7 OntWR 337; Presidential Proclamation of July 1, 1891, 27 U. S. St. at L. 981 (reciting that "satisfactory official assurances" had been given that in "Great Britain and the British possessions" the law permits to citizens of the United States the benefit of copyright on substantially the same basis as to the citizens of that country).

an

"After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great

gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for." MacGillivray Copyright p 45.

the

"Boosey v. Purday, [80 Rev. Rep. 495] decided that under the older Acts a foreigner not resident within the jurisdiction could not acquire copyright by publication in United Kingdom. It is understood, on the strength of very weighty dicta in the House of Lords, that under the Act of 1842 the law is otherwise; and on the faith of its being so British authors enjoy the reciprocal privilege of copyright-subject to printing from American-set type-by first or simultaneous publication in the United States." Sir Frederick Pollock in preface to 80 Revised Reports.

Per

[a] The importance of this question now lies in the fact that to obtain protection in Canada citizens of the United States must copyright their works in England under the former imperial statutes. See supra $ 78.

51. Boosey v. Purday, 4 Exch. 145, 154 Reprint 1159.

"We should therefore conclude, upon the construction of the statutes alone, that a foreign author, or the assignee of a foreign author, whether a British subject or not, had no copyright in England, and no right of action on the ground of any piracy of his work committed in the British territories." Chappell v. Purday, 14 M. & W. 303, 318, 153 Reprint 491. 52. See supra § 160.

53. D'Almaine v. Boosey, 4 L. J. Exch. 21; Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28, 7 OntWR 337.

54. Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681 [rev 6 Exch. 580, 155 Reprint 675]; Boucicault v. Delafield, 1 Hem. & M. 597, 71 Reprint 261.

55. Routledge v. Low, L. R. 3 H. L. 100 (holding that residence of a foreign author for only a few days and for the express purpose of acquiring a copyright. was sufficient under 5 & 6 Vict. c 45); Low v. Ward, L. R. 6 Eq. 415, 418 (where Oliver Wendell Holmes went to Montreal, Canada, and remained there pending publication of his "Guardian Angel" in London, thereby obtaining a valid British copyright).

"I have not the slightest doubt about this case. It is settled by Low v. Routledge, L. R. 1 Ch. 42 [app dism L. R. 3 H. L. 100] that an American who chooses to go across the frontier into Canada, and then publishes his work in the United Kingdom, acquires exactly the same rights as if he had been a British subject." Low v. Ward, supra.

benefits of British copyright to foreigners on terms of reciprocity.50

[§ 162] 3. Under Canadian Statutes.57 The Canadian copyright statutes give copyright to any person domiciled in Canada, or in any part of the British dominions, or who is a citizen of any country having an international copyright treaty with the United Kingdom.58 There may be some question whether this includes citizens of the United States.59 Works copyrighted in the United Kingdom are also entitled to copyright under the Canadian statute regardless of citizenship or domicile.

61

60

[§ 163] H. Law Reports. If it were possible to secure a copyright in the opinions of the court or other parts of a law report prepared by the judges, it would seem that such copyright might be secured for the state as being the proprietor.62 It is clear that a reporter can have no copyright either in the opinions delivered by the court, or in the statement of facts or syllabi prepared by the judges; nor can the judges confer any such right,65

56.

64

See infra § 453.

57. See also supra § 77 et seq. 58. Rev. St. (1906) c 70; Rev. St. (1886) c 62; Frowde v. Parrish, 27 Ont. 528; Anglo-Canadian Music Pub. Assoc. v. Winnifrith, 15 Ont. 164, 167.

"A British or Canadian author, or the citizen of any country having a copyright treaty with the United Kingdom, may assign to a foreigner his right to obtain copyright, and the rights of the foreign assignee will be protected. If the plaintiffs are to be treated as the authors of the compositions, then they are domiciled in London, England, where their head office is; and that is certainly a part of the British possessions within the meaning of the Act. In either case the plaintiffs are entitled to the sole and exclusive right of publishing and vending the works in question in Canada.' Anglo-Canadian Music Pub. Assoc. v. Winnifrith, supra.

[a] A resident in England is entitled to obtain copyright under the Canadian statute, as England is part of the British possessions, notwithstanding the Interpretation Act of 1889 provided that such term shall be construed as exclusive of the United Kingdom. Frowde v. Parrish, 27 Ont. 526.

59. Times v. Mail Printing Co., 14 OntWR 627; Copinger Copyright (5th ed) p 339 note (b).

"The enactment of the United States Copyright Act of 1891 and the consequent establishment of copyright relations between the United States and Great Britain, was regarded by the Canadian government as greatly increasing the disadvantages of Canada's position inasmuch as her authors could not obtain protection under that act except by setting up their works in type within the limits of the United States, while American authors could automatically secure copyright in Canada by merely publishing in the United Kingdom, and British authors, in contracting with American publishers for reprinting and selling their books in the United States would probably throw Canada into the bargain rather than treat separately with a Canadian publisher. They were not disposed to construe the arrangement with the United

States as an 'international copyright treaty within the meaning of the Canadian act, and this brought a remonstrance from the United States government as being inconsistent with the assurance given by Lord Salisbury that the law of copyright in force in all British possessions permitted to citizens of the United States the benefit of copyright on substantially the same basis as to British subjects, on the strength of

63

or themselves secure copyright in such matter." Original work of reporter. The question as to who may secure the copyright which may be had in law reports covering the original work of the reporter depends, first, on whether they are prepared by an unofficial or official reporter and, if by an official reporter, then on the terms of the statutes which provide for their publication.67 When reports of cases decided by the courts are the result of private enterprise, there is no question but that the reporter, although he can have no copyright in the opinions or other parts of the reports which are prepared by the judges, can secure a copyright which will protect all those parts which are the result of his own labor.68 It has been argued that, where the reports are prepared by an official reporter to whom the government which creates the court of which he is made reporter pays a salary, then whatever property there is in the labors of the reporter belongs to the state and not to him, and that he cannot secure any copyright in the reports. which the President's proclamation | 5,639; Little v. Gould, 15 F. Cas. No. in favor of Great Britain and her 8.394, 2 Blatchf. 165, 15 F. Cas. possessions had been issued. The No. 8,395, 2 Blatchf. 362; Banks v. Foreign Office replied that the incon- Manchester, 2 Del. Co. (Pa.) 372. sistency complained of was more apparent than real, for by first or simultaneous publication in Great Britain and registration at Stationers' Hall in London a citizen of the United States could under the English law secure copyright effective in Canada as in every part of the British dominions, and could then take action also under the Canadian act if this privilege should appear to present any additional advantages. Stationers' Hall is still open for registration in case it is desired to take any action in Canada by virtue of a British copyright, although such registration is no longer required for copyright within the United Kingdom." Copyright in Canada, 49 Am LRev 675, 679.

60. The Times v. The Mail Printing Co., 14 OntWR 627, 629.

"Another question is whether under section eight Commander Peary would not be entitled in Canada to copynight because he is not domiciled in Canada, as required by section four, and is not a citizen of a country having a treaty with Canada, as required by that Act. But Mr. Rowell's argument is, I think, a strong one, that inasmuch as the copyright is subsisting in England, either in The Times of Commander Peary, or in Commander Peary alone, it comes under the section which enacts that when copyright subsists in the United Kingdom, and is not secured under any Act here, it shall, when printed and published, or reprinted and republished, be entitled to copyright under this Act." The Times v. The Mail Printing Co., supra.

61. As subject of copyright see supra § 134.

62. Gould v. Banks, 53 Conn. 415, 2 A 886, 55 AmR 143. See Banks v. West Pub. Co., 27 Fed. 50 (question discussed but not decided).

63. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055; West Pub. Co. v. Edward Thompson Co., 169 Fed. 833 [mod on other grounds 176 Fed. 833, 100 CCA 303]; West Pub. Co. V. Lawyers' Co-op. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400]; State v. Gould, 34 Fed. 319; Banks v. Manchester, 23 Fed. 143 [aff 128 U. S. 244. 9 SCt 36, 32 L. ed. 4251; Myers v. Callaghan, 5 Fed. 726, 10 Biss. 139, 20 Fed. 441; Chase v. Seaborn, 10 F. Cas. No. 2,628, 4 Cliff. 306; Gould v. Hastings, 10 F. Cas. No.

69

64. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 64 Fed. 360, 25 LRA 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400].

65. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055.

66. Banks v. Manchester, 128 U. S. 244, 253, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. ed. 1055. See also State's Ability to Copyright Judicial Opinions, 36 CentrLJ 257.

"In no proper sense can the judge who, in his judicial capacity, prepares the opinion or decision, the statement of the case and the syllabus or head note, be regarded as their author or their proprietor, in the sense of § 4952, so as to be able to confer any title by assignment on the State, sufficient to authorize it to take a copyright for such matter, under that section, as the assignee of the author or proprietor. Judges, as is well understood, receive from the public treasury a stated annual salary, fixed by law, and can themselves have no pecuniary interest or proprietorship, as against the public at large, in the fruits of their judicial labors. This extends to whatever work they perform in their capacity as judges, and as well to the statements of cases and head notes prepared by them as such, as to the opinions and decisions themselves." Banks v. Manchester, supra.

67. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547. See Little v. Hall, 18 How. (U. S.) 165, 15 L. ed. 328 (where, under the statutes of New York, the copyright of the New York court of appeals reports was taken in the name of the secretary of state for the benefit of the state).

68. Little v. Hall, 18 How. (U. S.) 165, 15 L. ed. 328; Paige v. Banks, 13 Wall. (U. S.) 608, 20 L. ed. 709; West Pub. Co. v. Lawyers' Co-op. Pub. Co., 64 Fed. 441 [rev on other grounds 79 Fed. 756, 25 CCA 648, 35 LRA 400]; Chase v. Sanborn, 5 F. Cas. No. 2,628, 4 Cliff. 306; Farmer v. Calvert Lith., etc., Co., 8 F. Cas. No. 4.651; Gray v. Russell, 10 F. Cas. No. 5,728, 1 Story 11.

Crown copyright see infra § 164. 69. Myers V. Callaghan, 5 Fed. 726; Little v. Gould, 15 F. Cas. No. 8,394, 2 Blatchf. 165.

Employer or employee see supra §§ 149, 152.